| Case name | Chittaranjan Mirdha vs Dulal Gosh and Anr |
| Equivalent citation: | (2009)6SCC 661 |
| Date of judgement: | 8th May 2009 |
| Case no: | Criminal appeal no.964 of 2008 |
| Case type: | Criminal appeal |
| Petitioner: | Chittaranjan Mirdha |
| Respondent: | Dulal Gosh |
| Bench: | Arjit Pasayat,Harjit Singh Bedi |
| Referred: | Criminal Procedure Code |
| Arms act | |
| Indian penal code |
FACT OF THE CASE
- The complaint was submitted by the appellant with the inspector of canning police station on 25.12.2000 at about 12 noon when the son of the appellant was at the saloon under the name “Sundaram” near canning bus stand he was injured by a gunshot then the third son of the complainant rushed to the spot and with the help of others victim was shifted to the canning hospital where the victim was declared dead.
- There was a previous enmity between the victim and some person of Basanti police station and canning police station.
- In 1999 a person named anil thakur was murdered by some antisocial elements near canning hospital and a person named Arnab Roy who was the Pradhan of Dighirpar Gram Panchayat falsely accused the victim.
- Canning P.S case no.160 dated 25.12.2000 was started based on such case and the investigation authority submitted the charge sheet no.141 on 29.07.2001 implicating Animesh Halder @kuche, Rajesh Dhali, Selim Gayan, Rafique Dhali and Rajab Ali @Doktar as accused persons.
- 0n 31.08.2001 the court of sub – divisional judicial magistrate, Alipore took cognizance of offence under section 302/34/120B of Indian penal code with section 25/27 of the arms act and issued warrant of arrest against the absconding accused persons.
- On 27.2.03 the appellant filed an application before the Ld. Court of sub-divisional judicial magistrate praying for direction upon the DIG, CID, West Bengal to cause further investigation in terms of section 173(8) of code of criminal procedure code,1973 and it was order on the same date then issuance of warrant of arrest was issued against the respondent no.1 on 9.6 2005.
- The respondent no.1 moved a revisional application being criminal motion no.484 of 2005.on 13.6.2001 the application was rejected based on the ground that there was no scope to reopen the case in the view of earlier application filed by one against the said date 27.3.2003 and disposal of the said application being criminal motion no.100/03 by order dated 21.1.2004
- The learned counsel of respondent points out the backdrop of the present case which include section 302 of Indian penal code
- A petition was filed before Calcutta high court under section 482 questioning the correctness of the order passed and the additional chief judicial magistrate was directed to consider the relevant materials as well as the charge sheet no.141 of 29.7.2001.
- Considering the facts pointed out in the petition filed by the respondent court decides not to cognizance of the offence and drops the proceedings against the persons mentioned in the FIR and passed the order.
- The petitioner filed an appellant against the judgement of Calcutta high court quashing the cognizance.
ISSUE RAISED
Whether is the order of the high court quashing the order of cognizance taken by the additional district and session judge valid?
CONTENTIONS OF THE PETITIONERS
- He is disagreeing with the order of Calcutta high court taken by the additional session judge.
- There is sufficient ground for further proceedings, take cognizance of the offence and issue process.
CONTENTIONS OF THE RESPONDENTS
- The respondent put forward the backdrop of the case submitted by the investigation team and there was some FIR accused persons are left out in in the chargesheet and some others are included.
- In such a situation it is the duty of the court to issue a notice upon the de facto complainant and give him and opportunity of hearing.
REASONS OF JUDGEMENT
The accused persons are different from FIR after the investigation, but the informant is not aware of that. The Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of considering the report.
JUDGEMENT
It is not described as to how the order of the of the high court is prejudicial to the appellant. The high court has directed all procedural safeguards to be followed. It has also referred to applicability of section 319 of the code of appropriate cases. So, the court finds no merit in this appeal which is dismissed.
CONCLUSION
In this case the there was a change in report after second investigation some person in the charge sheet are left out and some of them are included in such situation the magistrate must provide a notice to the informant an opportunity to be heard at the time of considering the report. It was the duty of magistrate and there was a choice for magistrate can pass order for further investigation. This was the argument the respondent the order of Calcutta high court was favorable to the respondent. The petitioner filed an appellant against this, and the supreme court found there was no merit in this appeal and dismissed it.
REFERENCE
https://indiankanoon.org/doc/1074904/
Sneha c, Student of Government Law College Thrissur Third semester
